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spondent, as the statute plainly directs the inspector what to do when he finds symptoms of disease in live animals." Wess r. South Dakota Packing, etc., Co., (S. D. 1920) 180 N. W. 510.

Vol. I, p. 408, sec. 3. [First ed.,

vol. I, p. 452.]

Validity of regulations." Pursuant to this authority the United States Bureau of Animal Industry appointed an inspector with supervision over the Kansas City Stockyards at Kansas City, Mo. His duties required him to inspect all cattle from southern points before they were unloaded, and to place cattle which were clean and free from ticks in certain pens, and those infected with fever ticks in other pens. Such laws are valid.” Payne v. Cotner, (1921) 148 Ark. 401, 230 S. W. 275.

1918 Supp., p. 61. [Act of March 4, 1917.]

Contractural obligation of United States to pay for seized serum.- No contractural obli

gation on the part of the United States to pay for anti-hog-cholera serum, anti-cholera virus, and serum blood, seized without agreement to purchase by agents of the Bureau of Animal Industry, and thereafter destroyed, can be implied from the provisions of the Act of March 4, 1915, which was similar to the provision in the text, that, in case of an emergency arising out of the existence of certain contagious or infectious diseases of animals, which, in the opinion of the Secretary of Agriculture, threatens the live-stock industry, he may expend a specified sum, which sum is thereby appropriated, or SO much thereof as he deems to be necessary, in the arrest and eradication of any such disease, including the payment of claims growing out of past and future purchases and destruction, in co-operation with the states, of animals affected by, or exposed to, or of materials contaminated by or exposed to, any such disease. Great Western Serum Co. r. U. S., (1920) 254 U. S. 240, 41 S. Ct. 65, 65 U. S. (L. ed.) affirming (1918) 54 Ct. Cl.

203.

ARTICLES FOR THE GOVERNMENT
THE
THE NAVY

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fraud.] [First ed., vol. I, p. 466.]

Effect of release from active duty of member of reserve force.-The release from active duty of a member of the naval reserve force is equivalent to an honorable discharge, after which he cannot be recalled into service, except upon the intervention of some actual continuation of service in time of war or of national emergency, nor can he be brought to trial by court-martial for an offense alleged to have been committed prior to his

release. Hence, a member of the naval reserve force who is recalled to active service for use as a witness in a case before a courtmartial and to answer any charge that may be brought against himself, is entitled to be discharged on habeas corpus when it is attempted to bring him to trial before a courtmartial for a violation of this article alleged to have been committed prior to his release from active service. U. S. r. MacDonald, (E. D. N. Y. 1920) 265 Fed. 695. To same effect, see U. S. t. Warden, etc., (E. D. N. Y. 1920) 265 Fed. 787.

ARTICLES OF WAR

Vol. I, p. 458, art. 58. [ [First ed.,

vol. I, p. 492.]

Jurisdiction of assaults.-A general courtmartial has no jurisdiction under this article to impose a sentence of imprisonment upon a civilian teamster found guilty of assaulting another person by cutting him with a knife and by shooting at him with a pistol with intent to kill. Anderson v. Crawford, (C. C. A. 8th Cir. 1920) 265 Fed. 504.

Regarding the jurisdiction of a general courtmartial under this article, the court said:

"Upon a comparison of the specifications of the offense charged against appellee, and of the findings made, with the terms of the article of war under which he was tried and sentenced, it will be observed that as to specification 1, he was acquitted of the charge of felonious assault upon Watkins by cutting him with a knife with intent to kill, but found guilty of assaulting him by cutting

him with a knife. This was clearly not an offense under this article of war, because there must have been an assault and battery with an intent to kill' or 'wounding, by shooting or stabbing, with an intent to commit murder.' The appellee was found guilty under the second specification, in that he feloniously assaulted Watkins by shooting at him with a pistol with intent to kill. The article of war conferred jurisdiction upon a general court-martial to try and to punish the offense of assault and battery with an intent to kill, but it did not confer jurisdiction over a charge of assault with intent to kill. It was not alleged that in making the assault by shooting at Watkins the appellee wounded him, or in any way caused any force to be exerted upon the person of Watkins. While a battery always included an assault, assaults often fall short of a battery. An assault is an attempt, which, if consummated, would result in a battery. Mr. Justice Washington, in United States v. Hand, 2 Wash. C. C. 435, 437, 26 Fed. Cas. 103, No. 15,297, made the distinction in these words:

"The definition of an assault (1 Bac. Abr. tit. "Assault," 242) is an offer or attempt by

force to do a corporal injury to another, as if one person strike at another with his hands, or with a stick, and misses him; for, if the other be stricken, it is a battery which is an offense of a higher grade.'

"It is essential to a battery that some force shall be actually applied, not merely threatened or attempted to be applied, to the person of another, or to some article so closely connected with his person as to be regarded as a part of it. 1 Hawk. P. C. c. 62, § 2; 1 Russell on Criminal Law (7th Eng. & Can. Ed.) 881; 2 Whart. Cr. Law (11th Ed.) § 811; 2 Bishop, Cr. Law, § 72-(1).

"It is not necessary to invoke the rule that penal laws are to be strictly construed, although a trial by court-martial in the state of Mexico for an offense alleged to have been committed there would present an appropriate occasion for the application of that salutary rule of construction, for in this case the plain words of the statute include a battery as an essential element of the offense, before there can be a legal conviction and sentence, and none was alleged or found."

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BAIL AND RECOGNIZANCES

Vol. I, p. 490, sec. 1015. [First ed.,

vol. I, p. 521.]

Duty to admit to bail. Construing this section with 1016 and 1019 of the Kevised Statutes the Circuit Court of Appeals has said:

"We find the intent of the lawmakers to declare that a person under indictment for a noncapital offense shall not be imprisoned prior to his trial if he is willing and able to give bail. The word 'shall' in section 1015 is mandatory. This is apparent not only from the word itself, but from the contrast with the permissive word 'may' in section 1016. To abscond and forfeit one's bail is not included in the list of federal crimes. Even if it were, a person could not be punished therefor by imprisonment in advance of his indictment, trial, and sentence for that offense. If he were indicted for absconding and forfeiting bail, he would be absolutely entitled to be set at large pending his trial upon furnishing bail, unless the punishment for such absconding was death.

"Refusal to admit appellant to bail means that the District Court has adjudged a forfeiture of appellant's otherwise clear right under section 1015 solely by reason of finding that there is such a high degree of probability that appellant will again abscond that he should now be held without bail. It seems to us utterly immaterial on what character of evidence the trial court should base a finding that there is a high degree of probability that a defendant in a noncapital case will abscond. The question is what is the duty of the trial court when any showing is made that would justify such a finding of probability. And the answer is found in section 1019. It then becomes the duty of the judge to exercise his sound discretion under the law in fixing the amount of the bail. That is as far as his discretion goes. Taking all of the circumstances into consideration the trial court should fix the bail at such an amount as would be reasonably likely to assure the presence of the defendant when the case is called for trial." Rowan v. Randolph, (C. C. A. 7th Cir. 1920) 268 Fed. 527.

Vol. I. p. 492, sec. 1020. [First ed.,

vol. I, p. 523.]

Historical." This power of remission came to us from the English law, as asserted by Chief Justice Marshall, in 1813, in United States v. Feely, Fed. Cas. No. 15,082, 1 Brock. 255, and was but redeclared by the statute of February 22, 1839, now R. S. § 1020."

Grittin v. U. S., (N. D. Ga. 1921) 270 Fed. 263.

Construction. The statute being highly remedial ought to be liberally construed and not in favor of the forfeiture. Griffin v. U. S., (N. D. Ga. 1921) 270 Fed. 263.

Discretion of court. The power here given is a discretion to remit in whole or in part under stated conditions a forfeiture which has really occurred. The provision for remission is not of law but of grace. Griffin t. U. S., (N. D. Ga. 1921) 270 Fed. 263.

"Willful default."-The original statute of 1839 made the relief conditional on there being "no willful default of the parties," meaning possibly that all the parties to the recognizance who could be in default, both the principal and his sureties, must appear to be free of willful fault. Yet under the act so written it was held in 1863 (U. S. v. Duncan, Fed. Cas. No. 15,004) that a surety who was himself free from willful fault might be relieved; the forfeiture standing as to the principal. All doubt was removed by the Revised Statutes changing the word "parties" to "party," plainly meaning that party who was applying for the remission. Had the defendant or the principal been meant, a term definitely referring to him Iwould have been used, instead of one that would apply as well to the surety. Griffin v. U. S., (N. D. Ga. 1921) 270 Fed. 263.

Penalty alone remitted.-The judgment is not vacated or set aside. It must always stand as to costs, the penalty alone being capable of remission. Griffin v. U. S., (N. D. Ga. 1921) 270 Fed. 263.

Time of applying for remission - In general." No doubt the proper time to apply for the remission is on the return of the rule nisi, if the facts exist and are known which are to be relied on, and a failure to apply promptly ought to be considered as an unfavorable circumstance, and if injury has occurred to the public interests by the delay, the application ought to be denied." Griffin v. U. S., (N. D. Ga. 1921) 270 Fed. 263.

After term. The power of remission after term does not involve a question of the power to set aside a judgment after the term nor conflict with the executive power of pardon. The relief may be had in the discretion of the court as well after, as at, the term of the rule absolute. "The judgment on the rule absolute necessarily involves only the well-known absolute defenses to the recognizance, such as impossibility of performance by the act of God or of the law, and these only are concluded by the judg ment." Griffin v. U. S., (N. D. Ga. 1921) 270 Fed. 263.

Vol. I, p. 504.

Supp., p. 464.]

BANKRUPTCY

[First ed., 1912

General purposes of the Act.-To the same effect as the first paragraph of original annotation, see Farnsworth v. Union Trust, etc., Co., (C. C. A. 4th Cir. 1921) 272 Fed. 92.

"One of the general purposes of the bankruptcy law is to provide a uniform national law by which insolvent debtors can make a pro rata distribution of their assets among creditors. Prior to this amendment if a corporation sought to wind up its affairs and distribute its assets by means of a receivership, such a proceeding did not con-stitute an act of bankruptcy, and, consequently, creditors were entirely deprived of the valuable rights and safeguards provided by the bankruptcy law. This amendment was designed to correct that evil." In re Sedalia Farmers' Co.-op. Packing, etc., Co., (W. D. Mo. 1919) 268 Fed. 898.

66

But

Congress enacted the bankruptcy statute in the exercise of a public policy, for the benefit, not of debtors and creditors, but of society at large. It realized, of course, that unscrupulous and dishonest men would take advantage wherever they could of its provi sions. Equally of course, it was not intended to enable a debtor to rush into bankruptcy just in time to prevent his creditors from satisfying their claims out of property he was about to come into possession of. the difficulty in any law upon so complicated a subject as business relations is to make it cover every particular case that may possi bly arise. It does not seem to us that the act takes into account the motives of creditors in involuntary proceedings, or of debtors in voluntary proceedings; but instead of that. in view of the fact that such a practical subject as business relations between debtor and creditor is being dealt with, it concerns itself rather with conditions as they exist, and undertakes to fix definitely the obligations of the debtor and the rights and remedies of the creditor. In our judgment, it was thought best by Congress to prescribe general rules, which would usually promote satisfactory results, notwithstanding the fact that in isolated instances it would be difficult, if not impossible, to attain to the high standards of exact justice." Elberton Bank r. Swift, (C. C. A. 5th Cir. 1920) 268 Fed. 305.

Vol. I, p. 510, sec. 1 (9). [First ed.,

1912 Supp., p. 465.]

Finding as conclusive that petitioner not creditor. The legal presumption is that the finding of the court below that a petitioner was not a creditor of the company was correct, and that finding should not be reversed or dismissed by an appellate court, unless the

record clearly shows that in making it the chancellor fell into a controlling error of law or made a decisive mistake of fact. Cutler v. Nu-Gold Ring Co., (C. C. A. 8th Cir. 1920) 264 Fed. 836.

Vol. I, p. 511, sec. 1a (15). [First

ed., 1912 Supp., p. 465.]

Fair valuation. As the term is used in this section it means a value that can be made promptly effective by the owner of property to pay debts. In re Sedalia Farmers' Co.-op. Packing, etc., Co., (W. D. Mo. 1919) 268 Fed. 898. It is said that "The inquiry is simply this: What in the actual circumstances was the fair value of the assets of the debtor (afterwards the bankrupt) when he paid or secured the antecedent debt?" In re Fred D. Jones Co., (C. C. A. 7th Cir. 1920) 268 Fed. 818.

Contingent assets. Where the assets consisted principally of claims and choses in action many of which were disputed and the total of which was much less than the established liabilities, the evidence was held to show insolvency. Walker Grain Co. v. Gregg Grain Co., (C. C. A. 5th Cir. 1920) 268 Fed. 510.

Vol. I, p. 516, sec. 2. [First ed.,

1912 Supp., p. 469.]

Equitable jurisdiction.-To the same effect as the original annotation, see In re Schilling, (N. D. Ohio 1920) 264 Fed. 357; Greif Bros. Cooperage Co. t. Mullinix, (C. C. A. 8th Cir. 1920) 264 Fed. 391; Regal Cleaners, etc., v. Merlis, (C. C. A. 2d Cir. 1921) 274 Fed. 915.

Vol. I, p. 518, sec. 2 (1). [First ed.,

1912 Supp., p. 470.]

Corporation's principal place of businessIn general. The state in which a corporation is licensed to do business and maintains its plant is regarded as the state in which it has its principal place of business and not the state in which it is not licensed to do business but in which it maintains its corporate offices, keeps its books and records and holds its stockholders', directors', and executive committees' meetings and directs its business. And the situation is not affected by the appointment of a receiver by a court of the former state. In re Monarch Oil Corp., (S. D. Ohio 1920) 272 Fed. 524. The state in which a corporation is incorporated and in which it names its principal place of business in its articles of incorporation, at which place its producing plant is located and an office is maintained in which all of its books and records are kept, its

banking done and from which all of its official business is conducted, is held to be the corporation's principal place of business. In re Devonian Mineral Spring Co., (N. D. Ohio 1920) 272 Fed. 527, wherein the court said:

"What is the principal place of business of a corporation must be determined from a consideration of all of the facts; the place fixed in its articles of incorporation, the character of the corporation, its purposes, especially its dominant purpose, the kind of business it is engaged in, where its manufacturing plant and business offices are, its principal and not incidental transactions, in carrying on its business."

Burden of proof. It is the rule that, when the articles of incorporation name a place as the principal place of business of a corporation, the burden is upon the petitioning creditors to show it is elsewhere. In re Devonian Mineral Spring Co., (N. D. Ohio 1920) 272 Fed. 527.

Domicil of corporation.-A state in which a corporation is organized and which is the only one in which it has an office or does business is the domicil of the corporation. In re Devonian Mineral Spring Co., (N. D. Ohio 1920) 272 Fed. 527.

Vol. I, p. 522, sec. 2 (3). [First ed.,

1912 Supp., p. 472.]

Receivers' powers and duties in general."The receivers are officers of the court, appointed to conserve the property, and are not successors in title to the bankrupts, nor charged with notice of how or by what means such possession or title was acquired." In re Fosgate, (S. D. Fla. 1920) 268 Fed. 985.

Vol. I, p. 528, sec. 2 (5).

1912 Supp., p. 475.]

[First ed.,

Order to continue business.-The court has jurisdiction to authorize the trustee to operate the bankrupt's property as a going concern for a limited period. In re People's Warehouse Co., (S. D. Miss. 1921) 273 Fed. 611.

Vol. I, p. 529, sec. 2 (7). [First ed.,

1912 Supp., p. 476.]

Money paid to trustee through mistake.The court has jurisdiction under this section to order the trustee to refund money which he has received on a conveyance made by him of real estate in which he and all parties concerned mistakenly supposed the bankrupt had a vested interest, such mistake being regarded under the state law to be one of fact and not purely one of law. In re Russell, (E. D. Pa. 1921) 273 Fed. 724.

Vol. I, p. 531, sec. 2 (8). 1912 Supp., p. 476.]

[First ed.,

The proceeding to reopen an estate authorized by this section need not be formal.

In re Carlucci Stone Co., (M. D. Pa. 1920) 269 Fed. 795.

The order may be based on a petition without technical conformity of any kind, if it contains sufficient information to satisfy the court of the necessary jurisdictional fact, to wit, that the estate was closed before it was fully administered. In re Carlucci Stone Co., (M. D. Pa. 1920) 269 Fed. 795.

Discretion of court.-When the petition contains allegations of fact satisfying the conscience of the court, prima facie, that assets of the bankrupt remain unadministered, the court, in the exercise of its discretion, may reopen the proceedings. In re Carlucci Stone Co., (M. D. Pa. 1920) 269 Fed. 795.

It is only for the abuse of discretion that the court will be reversed; that is, where the court acts arbitrarily, or without apparent reason and authority. In re Carlucci Stone Co., (M. D. Pa. 1920) 269 Fed. 795.

Vol. I, p. 533, sec. 2 (11). [First

ed., 1912 Supp., p. 478.]

Extent of jurisdiction - Generally.- Unless the situation discloses a formal waiver and a failure to claim exemption in the bankruptcy court it is bound to act on the mandate of the Bankruptcy Act and set off the exempt property. In re Dautz, (D. C. Ind. 1921) 272 Fed. 348.

Vol. I, p. 538, sec. 2 (20). [First

ed., 1912 Supp., p. 480.]

Under the amendment of 1910.- To the same effect as the original annotation, see In re Flaherty, (N. D. Ia. 1920) 265 Fed. 741.

Vol. I, p. 544, sec. 3a (2). [First

ed., 1912 Supp., p. 483.]

Preferences in general.-To the same effect as the first paragraph of the original annotation see In re Saludes Lumber Co., (E. D. N. Y. 1921) 273 Fed. 303.

Transfer of stolen automobile sold to bankrupt. Where a bankrupt bought an automobile in good faith not knowing it was stolen and, after adding various accessories to it which he paid for, transferred it to a creditor, it was held that the automobile was "property within the meaning of this seetion and the transfer a preferential one and an act of bankruptcy. In re Schenderlein, (D. C. Mass. 1920) 268 Fed. 1018.

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Who may object to transfer - Subsequent creditors. Where a corporation transfers a part of its property to one of its principal stockholders, who is also a creditor, other creditors whose claims arise subsequently to such transfers, may not attack it as being a preference and an act of bankruptcy. Phillips v. Carter, (S. D. Ga. 1920) 266 Fed 444.

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